State v. DeMarsche

• Decision Date: 09 December 1941
• Docket Number: 8470.
• Citation: 1 N.W.2d 67,68 S.D. 250
• Parties: STATE v. DeMARSCHE.
• Court: South Dakota Supreme Court

1 N.W.2d 67

68 S.D. 250

STATE v. DeMARSCHE.

No. 8470.

Supreme Court of South Dakota

December 9, 1941

Edward Prchal, of Burke, for appellant.

Leo A. Temmey, Atty. Gen., and H. O. Lund, Asst. Atty. Gen., for respondent.

RUDOLPH Judge.

The defendant pleaded guilty to a charge of burglary in the third degree and was sentenced to a term of ten years in the state penitentiary. Thereafter there was presented to the trial judge who sentenced defendant, a so-called second information wherein it was alleged that the defendant had been on four prior occasions convicted of felonies in the state of South Dakota, and upon each conviction sentenced to the penitentiary in this state. Under this second information the state desired to have the defendant sentenced as an habitual criminal under the provisions of SDC 13.0611. The trial judge, however, withheld acting upon this second information which was subsequently withdrawn by the state's attorney and the defendant began serving his ten year sentence in the penitentiary. Some two or three weeks thereafter the state's attorney filed a new information wherein the four prior offenses were set forth in detail, and wherein it was again sought to have the defendant sentenced as an habitual criminal. Upon the filing of this last information the defendant was brought from the penitentiary and taken before a judge in the circuit other than the judge who had last sentenced the defendant; the defendant thereupon filed an affidavit of prejudice against the judge before whom he was taken, and a trial judge from the adjoining circuit was called in to act. This judge, upon determining the facts set forth in this last information, set aside the judgment sentencing the defendant to the penitentiary for a term of ten years, and entered a new judgment wherein the defendant was sentenced to imprisonment in the state penitentiary for the term of his natural life. It is admitted in this record that at the time the defendant was given the ten-year sentence the trial judge who sentenced him knew of the prior convictions of defendant, and knew that upon each conviction the defendant had served a term in the state penitentiary. The defendant has appealed from the second judgment wherein he was sentenced to life imprisonment.

There is no dispute in the facts and the only question presented is whether it was within the authority of the third trial judge called upon to act, under these admitted facts, to set aside the prior sentence and resentence the defendant to life imprisonment.

SDC 13.0611 provides, as follows:

"A person who, after having been convicted within this state of a felony or an attempt to commit a felony, or under the laws of any other state, government, or country, of a crime which if committed within this state, would be a felony, commits any felony within this state, is punishable upon conviction of such second offense as follows:

"(1) If the subsequent felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then such person may be sentenced to imprisonment for a term not more than twice the longest term prescribed upon a first conviction;

"(2) If a person has been three times convicted as hereinbefore provided and thereafter commits a felony within this state, such person may, in the discretion of the court, upon such fourth or any subsequent conviction of a felony, be sentenced to imprisonment in a State Prison for the term of his natural life;

"(3) If at any time, either after sentence or conviction, it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth herein, it shall be the duty of the state's attorney of the county in which such conviction was had to file an information accusing the said person of such previous convictions. Whereupon, the court in which such conviction was had shall cause the said person whether confined in prison or otherwise, to be brought before it and shall inform him of the allegations contained in such information and of his right to be tried as to the truth thereof according to law, and shall request such offender to say whether he is the same person as charged in such information or not. If he says he is not the same person or refuses to answer or remains silent, his plea or the fact of his silence shall be entered of record and a jury shall be empanelled to inquire whether the offender is the same person mentioned in the several records as set forth in such information. If...